Citation:

White v. White

2000 BCSC 0356

Date:20000301 20000228

Docket No.:

09743

Registry: Prince George

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

MADELEINE NOELLA WHITE

PLAINTIFF

AND:

DARRIN BRUCE WHITE

DEFENDANT

REASONS FOR JUDGMENT
OF
MASTER BAKER

Counsel for Plaintiff:

D. Lindsay

Representative for Defendant:

J. Eckert

Date and Place of Hearing/Trial:

February 21, 2000

Prince George, BC

ISSUE

[1] The plaintiff in this case applies for interim child and spousal maintenance. Other relief including a declaration of no likelihood of reconciliation, exclusive occupancy of the matrimonial home, health and dental insurance coverage, and a non-entry order against the defendant (pursuant to s. 126 of the Family Relations Act, R.S.B.C. 1996, c.128 and amendments) were given in chambers. I reserved on the maintenance question.

BACKGROUND and EVIDENCE

[2] The parties married in December 1988 and separated on the 18th of January 2000 when the plaintiff left the family home. The plaintiff is 33 years of age and the defendant is 34. Both parties are in good general health although the defendant takes prescription medication for a prostate condition and (as described below) says that he is currently under serious emotional stress.

[3] The parties have three children - Denon Jasmine, aged 101/2; Leslie Thomas, aged 91/2; and Tasha Maxine, aged 5. All the children have remained with the plaintiff since separation.

[4] Both the plaintiff and the defendant are qualified and certified railroad locomotive engineers and both have worked in that capacity prior to June 1995 when the family moved from Ontario to British Columbia to accommodate a change in the defendant's employment. The plaintiff's evidence is that the move was without discussion and was presented summarily to the plaintiff. She says that she was required, in short order, to cease her employment and to arrange for the move of the children and the household to British Columbia.

[5] Since coming to British Columbia the plaintiff has found only one month's employment, as a commissioned sales person. She says she quit that job on the insistence of the defendant, which he denies. There is no evidence whatever, though, establishing that the decision that the plaintiff should be a full time homemaker after moving to British Columbia and during the period 1995 to 1998 was not mutual. It may be that the plaintiff can return to her former employment as a railroad engineer or perhaps trainman, but it is not reasonable at this time to expect a quick return to that or similar employment in the immediately foreseeable future.

[6] The defendant has a daughter by a previous relationship with Melodi Johnston. The defendant and Ms. Johnston never married and the relationship had obviously ended prior to the parties' marriage in 1988. This daughter is Ashlee, born August 1, 1985. She resides, I understand, with her mother in Saskatchewan. In reply to a question from the bench, the defendant stated that he had not seen Ashlee for three years and immediately blamed the plaintiff for that. From the time of Ashlee's birth until the 7th of February 2000, there was no formal agreement or order requiring the defendant to support Ashlee. He advised the court during the proceedings that he has made contributions from time to time and that the arrangement with Ms. Johnston remained until the 7th of February "informal". By the terms of an agreement with Ms. Johnston, and dated the 7th of February 2000, the defendant has agreed to pay $439.00 per month to Ashlee's care "based on Darrin's gross annual income of $55,000.00 and based on the guidelines". He has also agreed to pay 50% of Ashlee's extraordinary expenses "which include extracurricular activities and medical and dental costs". There is no further definition or particularity as to these extraordinary expenses. The defendant is to make these payments by direct deposit to Ms. Johnston's bank account.

[7] This contract is dated February 7th. By amazing coincidence these proceedings were commenced the 10th of February. Provincial Court proceedings had already been commenced by the plaintiff. It taxes credulity to accept that in arranging this contract with Ms. Johnston the defendant had any dominant purpose other than to attempt to protect income from the plaintiff's claims and to allege hardship pursuant to s. 10(2)(d) of the Child Support Guidelines.

[8] It is interesting to note that in his 1996 and 1997 income tax summaries, the defendant has claimed a deduction of $1,800.00 or $150.00 per month for each year for maintenance, despite the apparent lack of any formality. There is no indication of a similar deduction for the tax year 1998.

[9] The defendant, as I mentioned, is a railroad engineer. His employment income is as follows:

1996

$65,997.00

1997

71,644.00

1998

64,703.00

The only evidence of income in 1999 is in para. 9 of the defendant's affidavit in which he states that his income will approximate $60,000.00. There is no corroboration of this number. For the year 2000, the defendant presented three pay stubs, the last of which was for the period ending the 13th of February and indicating a "year-to-date" total of $6,148.00. That amount, extrapolated for the whole of the year 2000, would result in a per annum income of $51,000.00. Some small allowance is indicated in the February 13th pay advice for overtime and premiums to the usual hourly rate of $26.87.

[10] There is no evidence in the defendant's materials explaining why the annual income should be reduced to $51,000.00 from a three year average of $67,500.00. Paragraph 9 of the defendant's affidavit states simply:

I am currently on stress leave and receive approximately $400.00 per week.

There is no corroboration of this fact. There is no cheque stub or payment advice to confirm the amount. There is no letter or confirmation by the employer as to the terms or rate of disability payments. There is no evidence by way of a collective agreement or employment contract outlining the terms of disability benefits. There is no letter or note of a physician confirming the medical difficulties that would justify disability.

[11] On his Form 89, property and financial statement (a difficult enough form for anyone, let alone a litigant without legal assistance, to complete in accurate detail) the defendant states:

I do not anticipate any significant changes in the information set out in this financial statement.

and indicates at p.7, item B, a total annual income of $20,000.00. If he were to receive disability for a full year that would be a correct sum. Yet in the absence of any particulars or corroboration respecting his disability I inquired during the proceedings as to the basic terms relating to disability coverage and the defendant advised that it is available for 8 weeks. It is clear to me therefore that some change to this income, either by a return to work or by long term disability, is inevitable within the very near future. The defendant has given the court no evidence whatever by which it can judge that question and in the circumstances I must conclude that the current interruption to the defendant's income stream is temporary and of short duration.

[12] The defendant advised the court that, since separation, he has been served with notice of four separate court proceedings. He has been charged criminally as a result of events surrounding the separation. The plaintiff brought two applications to the Provincial Court, Family Division. Finally, these proceedings were commenced on the 10th of February, 2000. I have no doubt that the trauma of separation and three separate court proceedings resulting in four separate attendances justify significant stress upon the defendant. Similarly, I am prepared to accept that, over the short term, an employer might be reluctant to charge the defendant with the obviously significant responsibility of a railroad engineer, while under serious personal stress. In the absence of any other evidence, however, I conclude that this circumstance will be of relatively short duration.

[13] Shortly after the separation the defendant took most funds from the parties' joint account and set up a new one in his own name. He says this created a brief problem regarding the payment of the mortgage, but the plaintiff, fearing default, maintained two payments while the defendant occupied the matrimonial residence, by making payments through the parties' joint line of credit.

[14] Since the parties separated, the defendant has paid the plaintiff $20.00.

INCOME and EXPENSES
The Plaintiff's Income

[15] If the plaintiff resides in the family home she anticipates social assistance payments of approximately $15,600.00 per annum, equating to approximately $1,300.00 per month. This sum will be reduced, I understand, in large measure by any funds received from other sources, eg. earnings or maintenance.

The Plaintiff's Expenses

[16] The plaintiff's total expenses indicated are $39,529.00 per annum or $3,294.00 per month, rounded to $3,300.00.

[17] From these expenses some deductions are appropriate where I judge the stated amounts to be overstated or unnecessary in an interim maintenance application.

House Repairs

$ 200.00

Internet

29.00

Food

150.00

Toiletries and Cosmetics

25.00

Gifts

85.00

Pet Care

50.00

TOTAL

$ 539.00 Rounded to $540.00

The net expenses for the plaintiff and the children are therefore $3,300.00 - $540.00 = $2,760.00.

The Defendant's Income

[18] This amount is problematic. The defendant is currently on disability benefits as described above. Moreover, there is no objective evidence of his 1999 income and the previous three year income average was $67,500.00. If, using that average, the defendant consumes the entire eight week period of his disability benefit, his annual income would drop by approximately $7,200.00 to $60,300.00. In the circumstances therefore, I attribute to the defendant an annual income for guideline purposes of $60,300.00. Should it be necessary and given that this amount considers a one time disability period, this sum may, at the plaintiff's option, be revisited one year hence.

The Defendant's Expenses

[19] Even recognizing that the defendant does not have counsel and is represented by community advocates, his property and financial statement is unreliable with respect to expenses. None are corroborated and several are, if not fanciful, at the very least speculative in the extreme. His expenses total $71,265.00 or $5,938.00 per month and they are justified by Mr. Eckert, his advocate, with curious logic: Mr. Eckert suggests that expenses of $71,000.00 per annum are relatively consistent with the defendant's previous annual income. He could not rationalize how I should accept that conclusion, when the defendant proposed an annual income of $20,000.00 as above.

[20] The defendant's expenses are reduced as follows -

Housing

$ 600.00

Toiletries and Cosmetics

200.00

Life Insurance

100.00 *

Laundry

100.00

Entertainment

150.00

Tobacco

150.00

Gifts

85.00

Pocket Money

50.00

Legal Fees

1,000.00

Utilities

150.00

Food

200.00

Household

25.00

Vehicle Repairs

100.00 *

Children

450.00

Charity

40.00

Vacation

250.00

Pet

50.00

TOTAL

$3,700.00

*uncorroborated

His net expenses are therefore $5,938.00 - $3,700.00 = $2,238.00 rounded to $2,240.00.

ANALYSIS

[21] First, although not thoroughly articulated, I understood the defendant to be presenting a hardship argument to the court and relying upon s. 10(2)(d) of the Guidelines. I reject that argument. Firstly, I seriously question that the payments in respect of Ashlee are actually being made and conclude that the agreement between the defendant and Melodi Johnston (Exhibit D to the defendant's affidavit filed February 21st, 2000) is an agreement purely of convenience. If I am wrong in this conclusion I adopt the words of Prowse J.A., in Van Gool v. Van Gool (1999) 44 R.F.L. (4th) at p. 329:

. . . Hardship is not sufficient; the hardship must be "undue", that is "exceptional", "excessive" or "disproportionate" in all of the circumstances. The onus is on the party applying under s. 10 to establish undue hardship; it will not be presumed simply because the applicant has the legal responsibility for another child or children and/or because the standard of living of the applicant's household is lower than that of the other spouse. The applicant must lead cogent evidence to establish why the table amount would cause undue hardship.

(my emphasis)

[22] The defendant has not met this threshold test.

[23] Finding the defendant's income to be $60,300.00 (para. 18 above) I fix interim child support at $1,071.00 per month commencing the 1st of March 2000 and continuing on the first of each and every month thereafter until further order of this court. The defendant's notional needs therefore are $1,071.00 + $2,400.00 = $3,471.00.

[24] The plaintiff requires $2,760.00 per month to meet the minimum expenses for her and the children. Her shortfall therefore is $2,760.00 - $1,071.00 = $1,689.00 rounded to $1,700.00 net. This amount would be taxable as support or earnings. Tax tables indicate that a gross monthly income of $1,900.00 would produce a net income of $1,720.00 for an individual with three children.

[25] Referring to the tax tables for a payor earning $60,000.00 per annum, it is clear that it is not possible with the plaintiff's and the defendant's current income and expenses to meet the needs of both parties. At an income of $60,000.00 per annum a party paying $1,071.00 per month non-deductible maintenance is left with approximately $2,264.00 per month, a sum barely equal to the defendant's notional expenses (para. 20). The plaintiff, on the other hand, obviously requires spousal maintenance. Accepting therefore that any amount of spousal maintenance represents not a division of income or wealth but an allocation of financial misery, I fix spousal maintenance at $1,000.00 per month, commencing the 1st of March 2000, and continuing on the first of each and every month thereafter until further order of this court.

[26] I realize that this maintenance amount will require each of these parties to substantially alter his or her lifestyle or standard of living. In the circumstances, and on the evidence before me, I see no other alternative.

[27] In the event that this matter is not resolved by agreement or trial, the plaintiff will have liberty to review the defendant's income upon the expiry of one year, ie. on or after February 28, 2001.

[28] The plaintiff is entitled to costs at Scale 3.

[29] In the event a draft order is not endorsed as to form by the defendant within 10 days of being forwarded to him, the plaintiff shall have liberty to enter the order without the defendant's approval.

"Master Baker"